Allahabad High Court
Harihar Prasad & Others vs State Of U.P. on 7 April, 2015
Author: Bharat Bhushan
Bench: Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved. A.F.R. Case :- CRIMINAL APPEAL No. - 2280 of 1997 Appellant :- Harihar Prasad & Others Respondent :- State Of U.P. Counsel for Appellant :- B.N.Singh,A.K. Barnwal,A.S. Diwakar,Apul Mishra,Neeraj Singh,P.N. Mishra Counsel for Respondent :- Govt. Advocate,Anoop Baranwal Hon'ble Bharat Bhushan,J.
1. This criminal appeal is directed against the judgment and order dated 16.12.1997 passed by the then Sessions Judge, Deoria in Sessions Trial No. 50 of 1990 (State versus Harihar Prasad and others) whereby appellant Harihar Prasad, Vijay Kumar, Kailash Prasad and Smt. Devanti @ Damyanti were convicted under sections 304-B and 201 Indian Penal Code (in short, IPC). All of them were sentenced to rigorous imprisonment of ten years' under section 304-B IPC and three years' rigorous imprisonment under section 201 IPC with a fine of Rs. 2,000/- each with default stipulation. However, all the sentences were directed to run concurrently.
2. The prosecution case is that marriage of deceased Rekha @ Baby daughter of Devi Prasad (complainant) (PW-1) was solemnized with Kailash Prasad, (appellant no. 3) son of Harihar Prasad (appellant no. 1) almost 13 months prior to the incident. The prosecution says that dowry demands were made subsequent to marriage of deceased Rekha @ Baby with Kailash Prasad. This information was allegedly communicated by the deceased to her father when he reached at her matrimonial home for Bedai. It is stated that later on, this demand was directly made to the father of the deceased when in the month of December, 1988 appellant Harihar Prasad (father-in-law of deceased), his elder son Vijay Kumar (brother-in-law of deceased), Kailash Prasad (husband of deceased) and some members of their clan went to the parental home of deceased for formally taking back the deceased to her matrimonial home. The father of the deceased sought some time to fulfil their demands. It is also alleged that a letter was also sent by Kailash Prasad, husband of the deceased, asking for a Television, Tape-Recorder and a Rajdoot motorcycle. It is stated that between the night of 27/28 of July, 1989 at about 2:30am, one Shyam Bahadur Singh (PW-3), Raghav Prasad and Vashisth Pandey (PW-2) went to the residence of Devi Prasad (PW-1)at Betia District Champaran and informed him about the death of his daughter. They informed him that his daughter had been murdered by administering poison and that her corpse had also been thrown into the river.
3. Devi Prasad, (PW-1) father of the deceased went to Megari Bazar, District Deoria, matrimonial home of deceased and inquired about her daughter from the neighbours as well as matrimonial family of his daughter. The appellants informed him that her daughter had died and last rites performed while neighbours insinuated that her daughter had been done to death by administering poison. Thereafter, PW-1 Devi Prasad lodged an First Information Report (in short, FIR). The matter was investigated. During course of investigation, some letters allegedly written by the deceased, her husband, her younger brother, her mother and her younger sister also surfaced which are available on record although authenticity of letter purported to be written by her husband Kailash Prasad has been challenged.
4. Charge-sheet was filed against 4 persons, namely, Kailash Prasad (husband), Harihar Prasad (father-in-law), Vijay Kumar (brother-in-law), Smt. Dewanti alias Damyanti (sister-in-law- Jethani). Charges were framed against all the appellants under Section 302 IPC and under sections 498-A and 201 IPC. An alternative charge under section 304-B IPC was also framed against them.
5. Prosecution examined PW-1 Devi Prasad (complainant), PW-2 Vashistha Pandey, PW-3 Shyam Bahadur Singh, PW-4 Paras Nath Yadav (Constable clerk), PW-5 Ram Ashish, PW-6 Sri Vansh Lochan Pandey, Dy. Superintendent Of Police and PW-7 Ram Bahadur. After recording statement of appellants under section 313 Cr.P.C., defence also examined several witnesses on their behalf. DW-1 Shabbir Ahmad, DW-2 Laxman Prasad, DW-3 Dr. V.K.Tiwari and DW-4 Daksh Niranjan Srivastava, hand-writing expert..
6. After considering the material on record, learned Sessions Judge convicted all the accused under sections 304-B, 201 IPC and sentenced them to various imprisonments and fine, as stated aforesaid. This judgment is under challenge in this appeal.
7. Heard Sri A.K. Barnwal, Sri Chandra Shekhar Sinha, Dilip Kumar Srivastava, learned counsel for the appellants, Sri Anoop Baranwal, counsel for complainant and Sri A.K. Saxena, learned Additional Government Advocate for the State.
8. Learned counsel for the appellants has submitted that there is no evidence on record to demonstrate that dowry demand was ever made or that deceased was harassed or subjected to cruelty soon before her death in connection with demand of dowry. He has also raised an argument that corpus delicti was absent and that the body of the deceased was not available for the post-mortem examination, therefore, it can not be established that the deceased had died in an abnormal circumstances or in the circumstances, which were not normal. His contention is that corpus delicti is essential in the case of death of a person and if corpus delicti is not found, the circumstances of death of the deceased can not be established.
9. On the other hand, learned Additional Government Advocate has submitted that there is no dispute that deceased had died within 13 months of her marriage and that various letters available on record along with oral testimonies of the witnesses would show that she had been repeatedly tortured and subjected to cruelty because of non-fulfilment of the demand of dowry. The fact that deceased died within 13 months of her marriage would also satisfy the proximity test. He has submitted that evidence available on record indicates that repeated demands for dowry were made and on non-fulfilment of dowry demand, the deceased was harassed and tortured.
10. Section 304-B IPC which deals with the dowry death, reads as under :-
"304B. Dowry death.-- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
11. Similarly, a section 113-B was also inserted into the Evidence Act, 1872 in order to combat the menace of dowry. Section 113-B of Evidence Act reads as follows:
"Section 113B of The Indian Evidence Act, 1872 113B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.--For the purposes of this section, "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).]
12. The conjoint reading of both the provisions indicate that prosecution will have to establish the following ingredients in order to attract Section 304-B IPC.
1. that the death of a woman has been caused by burns or bodily injury or occured otherwise than under normal circumstances,
2. that such death has been caused or has occurred within seven years of her marriage and,
3. that the woman was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry.
4. that such cruelty or harassment was for, or in connection with, any demand of dowry and
5. that such cruelty or harassment was committed soon before her death.
13. Once the presence of the aforesaid ingredients of Section 304-B IPC are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt. (Sher Singh @ Partapa versus State of Haryana (2015) 42 SCD 248.
14. It is, therefore, evident that prosecution can not hide behind the provisions of Section 113-B of Evidence Act by saying that certain allegations have been levelled and it is the duty of accused to dislodge the presumption of guilt. In fact, the question of presumption will itself arise once the aforesaid ingredients of Section 304-B IPC are established or proved by the prosecution may be even by preponderance of possibility. The benefit of presumption as entailed by section 113-B of Evidence Act would only be available once the prosecution has discharged the initial burden of establishing the ingredients of Section 304-B IPC.
15. Coming back to the facts of the present case, it is apparent that there is no dispute that deceased Rekha alias Baby had died within seven years of her marriage. In fact, her death occurred within 13 months of her marriage. This fact has been alleged by complainant in his testimony and accepted by all the appellants in their statements under section 313 Cr.P.C. The question of abnormality of death remains open as corpus delicti was not available. The evidence reveals that deceased died in the night of 26/27.7.1989 and was taken to the bank of Ghaghra river in Bhagalpur district for customary last rites by immersing the corpse in the river. There is no dispute that in particular social environment, it was customary to submerse the corpse of the pregnant woman in the designated river. This custom has been conceded even by PW-6 Vansh Lochan Pandey, Dy. Superintendent of Police during his cross-examination and also indicated by PW-5 Ram Ashish. It is admitted by Sri Vansh Lochan Pandey that in a particular social milieu of accused persons, the corpse of pregnant women were customarily immersed in the nearby river. The testimony of PW-5 Ram Ashish, whose truck trolley was hired for transporting the corpse of deceased Rekha to the bank of Ghagara/Saryu has testified that 15-16 persons of Megari Bazar had accompanied the body of deceased and that all rituals were, in fact, performed to bid farewell to the deceased.
16. The prosecution has relied upon the testimonies of PW-1 Devi Prasad (father of the deceased), PW-2 Vashisth Pandey and PW-3 Shyam Bahadur Singh for proving the alleged abnormality of death of deceased Rekha. The testimony of PW-1 Devi Prasad reveals that he was not present on the place of occurrence and that before he could reach the Meghari Bazar town to which all the appellants and deceased Rekha belonged, funeral had been done. The allegations made by Devi Prasad regarding abnormal circumstances of death of Rekha alias Baby are obviously based upon the information furnished by others. He was living peacefully at Betia District Champaran when PW-2 Vashisth Pandey, PW-3 Shyam Bahadur and their companion Raghav Prasad Baranwal arrived at Betia to inform him about the death of his daughter. The testimony of Devi Prasad further reveals the last rites of deceased Rekha had already been performed when he reached there. Then the question arises how did the allegations of abnormality of circumstances of her death surfaced? These allegations are primarily based upon the testimony of PW-2 Vashisth Pandey and PW-3 Shyam.
17. PW-1 Devi Prasad has testified that just 10-12 days prior to the incident, he had visited her daughter at her matrimonial home and found her completely healthy and fit and she was not suffering from any sickness. This contention of PW-1 Devi Prasad, father of deceased, is little doubtful. He himself had proffered some letters to the Investigating Officer. Those letters were allegedly written by Kailash Prasad, husband of the deceased and deceased herself. In turn, some other letters have been placed on record by the appellants. All these letters are on record. The letter allegedly written by appellant Kailash Prasad will be discussed later on. Its authenticity has been challenged by hand-writing expert Sri D.N.Srivastava (DW-4). In any case, the contents of letter allegedly written by Kailash Prasad do not discuss the health of his wife, but a letter (Ex.Kha-I) of younger brother of deceased written just 5-6 days prior to her death refers extensively the deteriorating health of the deceased. It appears that one Misrajee informed the parents of the deceased that their daughter was seriously sick and being treated at Deoria but had not recovered. Letter further says that her mother was crying and her father was about to visit her and if her in-laws wished, they were prepared to take her to Betia or Patna for treatment. This letter indicates that deceased was seriously sick and this fact has been reinforced by DW-3 Dr. V.K.Tiwari, who has testified that deceased Rekha was under his treatment and she had visited him on 19.6.1989, 27.6.1989, 10.7.1989 and 25.7.1989 i.e. almost one day prior to her death. Dr. Tiwari has stated that deceased was pregnant and had been suffering from fever and that he suspected that her child had died in her womb. Therefore, he had written on her medical report "foetal heart sound minus" and that her condition was serious. He had also referred the deceased to Gorakhpur Medical College, Gorakhpur. He had specifically asserted that treatment of deceased Rekha was in fact entered into the Out-door Patient Register of nursing home, which was seized during the course of investigation by the Investigating Officer. He has also alleged that after taking register into his possession, Investigating Officer had not returned it. Surprisingly, this outdoor patient register was not produced during the course of trial before the trial Judge. Therefore, no question could be asked about this outdoor patient register. Why was this register hidden from the trial court ? Once the register had been taken into possession by the Investigating Officer, it was incumbent upon the Investigating Officer to produce it during trial and once the trial Judge became aware of existence of outdoor patient register, then he should have directed the Investigating Officer to produce it. The testimony of Dr. V.K.Tiwari clearly establishes that Rekha had indeed become seriously sick. At the time of her death, she was pregnant but no heart sound of foetal was found by the doctor. It is not the oral testimony alone which indicates these facts. The medical prescription prepared by Dr. V.K.Tiwari was made available to trial court as Ext. Kha-8. This paper indicates that Rekha had indeed been treated by Dr. V.K.Tiwari on 19.6.1989, 27.6.1989, 10.7.1989, and 25.7.1989. On 25.7.1989, Dr. V.K.Tiwari advised that patient should be taken to Medical College, Gorakhpur. It is common knowledge that once foetal dies in womb of mother, then life of mother herself comes in danger if proper treatment is not provided to the patient immediately. Megari Bazar and district Deoria perhaps are not best places for effective treatment even today. But this case stems from July 1989. One can very well imagine the state of affairs as existed there 25 years ago.
18. Apart from the aforesaid evidence, testimony of DW-1 Shabbir Ahmad is also significant. Shabbir Ahmad admittedly is not a medical doctor but was practising medicine in Megari Bazar. He had admitted that he was merely trained by a doctor and after receiving training from a doctor, he had obtained a license to run a medical shop and was also treating the patients in his private practise. His dispensary was located at Magari Bazar the place of residence of appellants and deceased Rekha. He has testified on oath that he had been asked by the appellants to look after deceased Rekha at the time of her death. He has testified that he had visited Rekha and found her seriously sick. Her pulse rate was extremely low. He did not treat Rekha and asked the appellants to take her to some lady doctor. Deceased died immediately afterwards.
19. Examining the prosecution evidence minutely, it is evident that Devi Prasad was aware of sickness of her daughter and his younger son had in fact requested deceased to come to Betia for treatment. Chances are that this offer had been made by younger son at the instance of his parents. There is sufficient and credible evidence on record to establish that deceased Rekha was seriously sick at the time of her death and was receiving treatment from doctors.
20. Prosecution witnesses , namely, PW-2 Vashisth Pandey, and PW-3 Shyam Bahadur Singh were certainly not in a position to testify whether deceased had been administered any poison or not. Their testimonies depend on their assumption. They were present at some nearby shop. The medical shop of PW-2 Vashisth Pandey is near the residence of appellant Harihar Prasad. He has deposed that on the day of incident, he was sitting with PW-3 Shyam Bahadur and Raghav Prasad. They heard some noise at about 10:30pm and saw that appellants took deceased Rekha out of their house and placed her on a cot in front of their door. This witness and his companion went to Rekha. She was regurgitating froth. PW-2 Vashisht Pandey testified that appellants took Rekha, who was lying on a cot, towards another house located at Megari Bazar. Interestingly Megari Bazar appears to be a town which lies both in the Uttar Pradesh as well as Bihar. Appellants placed Rekha on a cot at their residence located in the part of Megari Bazar which lies in State of U.P. and took her to another residence located at the distance of around half a kilometre in the same town which lies in Bihar. This information was received by PW-2 Vashisth Pandey in the morning. They also received information that deceased had died in the night and that her corpse had been immersed in river Ghaghara at Bhagalpur. This entire evidence of PW-2 Vashisth Pandey is based on his interaction with others. A careful perusal of this evidence demonstrates that his testimony depends upon his assumption because deceased was allegedly spewing froth from her mouth. They had not seen any incident or action or act on the basis of which they could conclude that Rekha had been administered poison.
21. PW-3 Shyam Bahadur Singh has also testified in similar manner. In fact, PW-2 Vashisth Pandey and PW-3 Shyam Bahadur Singh were present at the shop of Vashisth Pandey although Shyam Bahadur Singh has stated that he had gone to Ali Raza's place for receiving tuition and was sitting at Ali Raza's place. Despite the fact that both these witnesses were present at nearby place and that both of them went to appellants' residence simultaneously, there are unexplained discrepancies in their testimonies. There is absolutely no evidence to suggest that any poisonous substance had been administered to deceased Rekha. This weakness of evidence can not be brushed aside. The claim of PW-2 Vashisth Pandey that he is a doctor, was blown away during his cross-examination. He has conceded that he is merely a Science graduate and was running a medical store and was also offering medical assistance to the patients on the basis of his experience gained during his work as an Assistant to some M.B.B.S. doctor at Chapra, Bihar. Initially, Vashisth Pandey had deposed that he was sitting at his shop but he gave a different statement to the Investigating Officer. He said that he was sitting at Ali Raza's shop. Although he has explained that his shop and Ali Raza's shop are adjacent to each other.
22. Learned Additional Government Advocate has stated that deceased died in abnormal circumstances because no information had been given to the parents of the deceased about her death and that last rites had been performed in hush-hush manner. I am afraid, this argument can not be totally accepted. The performance of last rites of the deceased in urgent manner can not by itself prove that the deceased had died in an abnormal circumstances. The funeral of a person can be done silently for a variety of reasons. Some time people get frightened because they do not like to keep a corpse in their house. There could be several reasons for early disposal of dead-body. But corpse of Rekha was not surreptitiously disposed of. The testimony of PW-5 Ram Ashish is very significant. Appellants used services of Ram Ashish for transportation of corpse of deceased on payment of Rs. 300/- from Megari Bazar to the bank of river Ghaghara/Saryu. He has specifically stated that he took corpse of deceased at around 3:00/4:00am and reached the bank of river at about 6:00am. Interestingly, he had testified that there is a 'Khanua Nala' in between Megari Bazar and Bhagalpur. Last rites are also performed at Khanua Nala. Appellants preferred to perform last-rites at the bank of river Ghaghara/Saryu. This indicates that appellants were not in a hurry to dispose of the corpse of deceased, otherwise they could have performed the last rites at Khanua Nala itself.
23. The claim that funeral was done in a hush-hush manner was also blown by the statement of PW-5 Ram Ashish that almost 15-16 persons from Megari Bazar had accompanied the dead body of the deceased to the bank of river where last rites were performed. He has also testified that corpse of deceased was not simply thrown in the river but all the rites were performed which took almost two hours to complete. It again debunks the claim of prosecution that the deceased was cremated surreptitiously without the involvement of local persons. This claim is not supported by any evidence. The claim of prosecution that no information regarding the death of deceased was given to the family members of the deceased is also doubtful. Appellants had specifically mentioned that they had given information about the death of deceased through brother-in-law of deceased Sri Niwas. PW-3 Shyam Bahadur Singh has also testified in paragraph 11 of his statement that a telegram was sent to the complainant PW-1 Devi Prasad, father of the deceased, although he could not name the sender. Therefore, it can not be said that no information had in fact been given to the parents of deceased. It is possible though that sufficient time for arrival of parents was not given. But we can not forget the lack of effective communication network 25 years back in eastern Uttar Pradesh and some part of Bihar. People do not like to keep the dead body of a person especially that of a pregnant woman in their home. There are social pressures and customary obligations impelling early funeral. Satisfactory evidence has to be produced to demonstrate that deceased had died in abnormal circumstances. The evidence of Dr. V.K.Tiwari has completely demolished the claim of the prosecution that deceased had died in abnormal circumstances. In any case, the testimonies of the prosecution witnesses are highly doubtful. There are discrepancies in the testimonies of various witnesses. Initially, PW-3 Shyam Bahadur Singh had stated that he was present at the shop of Ali Raza for receiving tuition but during the course of cross-examination, he blurted that Ali Raza was not even present at his shop. There are discrepancies between the testimonies of PW-2 Vashisth Pandey and PW-3 Shyam Bahadur Singh regarding the place of their presence. These discrepancies have not been explained by the prosecution. The evidence regarding the presence of these witnesses on the spot is not convincing. In any case, PW-2 Vashisth Pandey himself has admitted that he merely suspected poisoning. It is evident that there was no material before PW-2 Vashisth Pandey and PW-3 Shyam Bahadur Singh to conclusively assert that deceased had been administered poison.
24. Considering the available materials on record, this Court does not believe that deceased died by burn or bodily injury or otherwise than under abnormal circumstances. This Court believes that deceased died of complication during her pregnancy. She was under treatment of a doctor but could not survive. There is no convincing evidence to establish that deceased had died under abnormal circumstances.
25. The Court has also to consider whether prosecution has successfully shown that deceased was subjected to cruelty which was connected with dowry demands. It is incumbent upon the prosecution to show that deceased was subjected to harassment or cruelty by her husband or any of the relatives of her husband in connection with demand of dowry soon before her death. The deceased had died within 13 months of her marriage. Therefore, it is evident that whatever happened took place during the period of 13 months. Therefore, question of 'soon before' is self evident. But it was still incumbent upon the prosecution to show that deceased was subjected to harassment or cruelty by her husband or his relatives or by both for or in connection with the demand of dowry.
26. For establishing cruelty and demand of dowry, the prosecution has relied completely on the oral testimony of PW-1 Devi Prasad and a letter purported to have been written by the husband of deceased demanding dowry. This letter is on record as Ext. Ka-3. Appellants have denied that this letter had been written by Kailash, husband of the deceased. This letter was sent for forensic examination before D.N.Srivastava (DW-4) a hand-writing expert. The report of hand-writing expert is on record as Ext. Kha-9. The report (Ext. Kha-9) concludes that letter had not been written by appellant Kailash. Detailed reasons have been delineated in the report. Sri D.N. Srivastava, hand-writing expert has also appeared as witness before the trial court as DW-4. His testimony says that Ext. Ka-3 had not been written in the hand-writing of Kailash and somebody else has written this letter. The defence has suggested that this letter had been fabricated by one of the children of complainant. This suggestion is obviously based on conjectures but considering report (Ext.Ka-9) and testimony of DW-4 D.N.Srivastava, it is evident that authenticity of this letter is highly doubtful. Therefore, letter Ext. Ka-3 can not be taken into consideration for establishing the demand of dowry.
27. The prosecution has also relied upon the letter written by deceased Rekha to her mother (Ext. Ka-2). The veracity of this letter have been disputed by the appellants. But, PW-1 Devi Prasad has brought this letter on record and also proved it. But a careful perusal of this letter merely reveals that deceased was indeed unhappy in her matrimonial home. She had suddenly been uprooted to a completely new environment. The letter reveals that she was unable to adjust in the new environment. The letter further indicates that she was perhaps missing the perceived free flowing atmosphere of her own parental home. She perhaps also thought that she was spending more time in the household chores while other family members especially her sister-in-laws were not helpful yet this detailed letter does not indicate any demand of dowry. It does not disclose that she was being harassed and tortured for or in connection with demand of dowry. Harassing somebody for non-fulfilment of dowry demand is totally different from normal routine problems of joint family life specially at initial stage. At one place in this letter, the deceased had mentioned that she was not getting any free time with her husband and that daughters of her Jethani or his sister-in-law kept watching her activities even in the privacy. Letter indicates that usual taunting and jeering had been going on in the family. Deceased even perceived that her husband was neither working and nor amenable to her wishes but letter does not disclose that she was being harassed for non-fulfilment of dowry demand. This letter is quite blunt. Deceased had delineated her perceptions of her matrimonial home quite openly yet this letter does not indicate at all that deceased was being mal-treated or harassed for non-fulfilment of dowry demand like television, tape-recorder and motorcycle etc.
28. The defence has also produced certain other letters authenticity of which has been accepted by PW-1, father of the deceased. He has admitted that letters Ext. Kha-2 and Kha-3 were written by his wife and that letter Ext. Kha-4 and 5 have been written by his younger daughter Dolly. None of these letters indicates that any demand of dowry had been made. In fact, one of the letters written by the mother of the deceased asked her daughter to be careful in her matrimonial home. There is nothing in these letters to demonstrate that any demand of dowry had been made. It is quite possible that they were careful in drafting the letters in order to avoid any complication considering that these letters were going to matrimonial home of daughter but they could have at least showed willingness or unwillingness to fulfil their dowry demands. PW-1 has stated that he had sought more time to fulfil the dowry demand. But these letters do not indicate any promise to consider the demand in future. These letters do not indicate that her father had been approached for dowry and he had sought some time to fulfil the demands. The fact of the matter is that authenticated letters on record from both sides do not indicate commission of any cruelty or harassment for or in connection with demand of dowry.
29. That leaves only the oral testimony of PW-1 Devi Prasad because other witnesses were neither aware of any torture or harassment nor have deposed regarding any harassment. PW-1 Devi Prasad has said that his daughter had informed him that appellants had been demanding television, tape-recorder and Rajdoot motorcycle etc. Devi Prasad allegedly promised to make arrangement to fulfil the additional dowry demands. Later on, PW-1 Devi Prasad also deposed that appellant Harihar Prasad along with some other members of clan came in the month of December, 1988 in connection with some ceremony and made additional dowry demands upon which he sought some time to fulfil those demands. Devi Prasad (PW-1) has testified that sister-in-law (Jethani) and appellant Devyani used to taunt and harass the deceased. He has not stated that any specific person had tortured or harassed or subjected the deceased to cruelty. The statement of Devi Prasad (PW-1) is very vague and general. No specific incident has been cited suggesting that cruelty or harassment had been done by any specific person. His statement is not reliable and trustworthy. As stated earlier, some discrepancies have been found in the statement of Devi Prasad. An attempt to create or manufacture evidence is also palpable. PW-1 Devi Prasad has deposed that he had gone to meet her daughter prior to her death and found her completely fit and healthy. His testimony regarding this visit is highly doubtful. The evidence on record discloses that deceased was sick even in the month of June, 1989 and was under treatment of various doctors and this fact has been mentioned in the letter Ext. Kha-1, written by younger brother of the deceased on 20.7.1989. This letter was written a week prior to the death of deceased. The testimony of DW-3 Dr. D.K.Tiwari can not be discounted wherein he has stated that deceased was under his treatment since 19.6.1989 till her death. This testimony of PW-1 Devi Prasad does indicate his desire to obtain conviction of appellants under in any situation, otherwise he would not have said that he had visited her daughter before her death and found her completely healthy and fit. It is evident that PW-1 Devi Prasad, father of deceased, was angry at the time of his testimony. He was perhaps aware that her daughter was not happy in her matrimonial home. His bitterness and anger are evident from his testimony. Therefore, his uncorroborated testimony has to be taken into consideration with a pinch of salt.
30. The trial court has discarded the testimony of D.N.Srivastava, hand-writing expert (DW-4) without any logical reason. The trial court has taken cognizance of tension in the matrimonial home of the deceased prior to her death but tension in the matrimonial home by itself does not establish that it was of result of dowry demand but this allegation has to be specifically made and proved by satisfactory evidence. In present case, such evidence is not available.
31. Considering the aforesaid discussion, it is evident that prosecution has failed to establish that deceased died in abnormal circumstances or that she had been harassed and tortured for or in connection with dowry. This Court believes that deceased was sick during her pregnancy and could not get proper medical treatment in a backward region of Uttar Pradesh 25 years back. Therefore, appeal is allowed. The judgment and order dated 16.12.1997 passed by the then Sessions Judge, Deoria in Sessions Trial No. 50 of 1990 (State versus Harihar Prasad and others) is set aside. Appellants are in jail. They be set at liberty forthwith if not required in any other case.
32. Office is directed to send a copy of this judgment to the trial court through the District & Sessions Judge, Deoria, within ten days.
Order Date :- 7.4.2015 SU.